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For people with criminal records
For people with criminal records

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Challenging an ineligible DBS check

 

Aim of this information

For anybody with a criminal record, a criminal record check can be the most terrifying part of the recruitment process. If you know that your conviction is spent and believe that the job you are applying for is eligible for a basic check, then you would be extremely concerned to subsequently learn that an employer would be doing a standard or enhanced check.

This information will assist you in challenging through the Disclosure and Barring Service (DBS), an employer who you believe is carrying out an incorrect criminal record check.

Why is this important?

If an employer were to carry out an ineligible check, this could result in them becoming aware of a conviction which, legally, they are not allowed to know about. You may find that once they are aware of it, they decide to withdraw the job offer.

Having a good understanding of the process of challenging an ineligible check will hopefully give you the confidence to do so.

Introduction

Through the DBS, employers are able to conduct standard and enhanced checks for certain roles, which will disclose both spent and unspent convictions. Sometimes employers request DBS checks for roles that only require a basic check. Therefore, the wrong check is being applied for. This could result in the disclosure of a spent conviction which should not be disclosed. The DBS has a system which allows you to query these ineligible checks, to ensure that the correct checks are done for the correct roles, so you only disclose what you legally have to.

Step 1 – Is the role eligible for a DBS check?

Many employers can legally conduct a standard or enhanced check on the roles they are advertising and they will make this clear during their recruitment process.

If you believe the role is eligible for a DBS check, then disclose all cautions/convictions that are not filterable.

If you have good reason to believe that an ineligible check is being requested, then you may not want to disclose your spent cautions/convictions until you have had a chance to query this through the DBS.

Step 2 – Consent to the check

Where you believe that a check is ineligible, at this stage it is best to consent to the check. If you do not consent, then this may raise warning signs with the employer that you do have convictions. You should tick “no”, to the question about cautions and convictions. You do not want to disclose any spent convictions, as the DBS may subsequently find that the check is ineligible.

Step 3 – Immediately raise this with the DBS

Once the employer has submitted the application, you can then challenge it through the DBS. You will have to provide sufficient information to the DBS so that they can locate the check.

Information to be provided

E-mail customerservices@dbs.gsi.gov.uk with the following information:

  • In the subject line of the email, enter “APPLICATION ELIGIBILITY QUERY – URGENT”.
  • In the email, you should include as much information as possible, including your full name, your current address, your date of birth, the position applied for, the organisation name, the Registered Body number and the DBS form reference (11 digits on the top right).
  • You should also include details of why you think the application is not eligible.
  • State clearly that you would like the DBS to put the check on hold pending an outcome to their assessment of eligibility.

Examples of email templates challenging an ineligible check

Person one – Sarah

Sarah has applied for a job as an administrator working for a company who has contracts with some NHS trusts, Employer A. As part of the recruitment process, Sarah’s employers have applied for a standard DBS check which would disclose her spent conviction for fraud for which she received a 12 month custodial sentence. Sarah believes that her role is only eligible for a basic DBS check.

Dear Sir/Madam

RE:  APPLICATION ELIGIBILITY QUERY – URGENT

I wish to raise an eligibility query with the DBS in relation to a recently submitted application for a standard DBS check, the details of which are as follows:

[Full name, address, date of birth, position applied for, name of organisation or registered body and DBS reference number]

I have recently been offered the role of administrator for Employer A who work on IT contracts for a range of companies. Employer A has recently applied for a standard DBS check on the basis that they carry out some contracts for the NHS. From my job description (see attached) and knowledge of the role, I believe that this position would only be eligible for a basic DBS check. I set out below my reasons for querying eligibility:

  1. From the research I have carried out, my position is not included in the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975 which would make it eligible for a standard DBS check.
  2. Although I work on NHS contracts, I am based in an office on a business park not in a hospital or healthcare setting. During the course of my work, I would have no contact with patients or their medical records.
  3. I have used the online DBS eligibility tool checker which states that my role would only be eligible for a basic DBS check.

Based on the above information I believe that my role of administrator with Employer A would only be eligible for a basic DBS check.

I would like the DBS to undertake an investigation as to the eligibility of this check and, until such time as an outcome has been determined, I would like the application for a standard DBS check to be put on hold.

Yours faithfully

Sarah Smith

The DBS investigated eligibility and agreed that Sarah’s job as administrator for Employer A would only be eligible for a basic DBS check.

Person two – Hassan

Hassan has applied for a job as a bus driver working for a large bus company, Employer B. As part of the recruitment process, his employers have applied for an enhanced DBS check on the basis that children may get on Hassan’s bus. Hassan is concerned that an enhanced check would disclose his spent conviction for GBH. As he would only be working on general town runs (with no specific school runs), Hassan believes that his role would only be eligible for a basic DBS check.

Dear Sir/Madam

RE:  APPLICATION ELIGIBILITY QUERY – URGENT

I wish to raise an eligibility query with the DBS in relation to a recently submitted application for an enhanced DBS check, the details of which are as follows:

[Full name, address, date of birth, position applied for, name of organisation or registered body and DBS reference number]

I have recently been offered the position of bus driver for Employer B and a request for an enhanced DBS check has been submitted by ABC Registered Body. Based on the job description I have been given (see attached) I believe that my role would only be eligible for a basic DBS check for the following reasons:

  1. Employer B has stated that I will be working as a bus driver in the ‘Adult and Children Workforce’. However my position is not included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 nor the Police Act (Criminal Records), the legislation which makes it eligible for an enhanced check.
  2. Although Employer B have a contract with the local council to provide buses for various school runs, this will not form part of my role, as can be seen from the enclosed job description.
  3. I will not be carrying out any regulated activity with children or adults and I will not be managing or supervising anybody that does carry out regulated activity.

Based on the above information I believe that my role of bus driver with Employer B would only be eligible for a basic DBS check.

I would like the DBS to undertake an investigation as to the eligibility of this check and, until such time as an outcome has been determined, I would like the application for the enhanced DBS check to be put on hold.

If you require any further information please feel free to get in touch with me.

Yours faithfully

Hassan Yacoub

The DBS investigated eligibility and agreed with Hassan that as he was not contracted to work on a designated school route, then his job would only be eligible for a basic DBS check.

Person three – Peter

Peter has applied for a job as an accountant working for a large housing association, Employer C. As part of the recruitment process, his employers have applied for an enhanced DBS check. Although Peter doesn’t have any cautions or convictions, an allegation of sexual assault was made against him whilst he was at university and even though the police decided to take no further action, this allegation could potentially be disclosed in the police intelligence part (sometimes referred to as approved information) of an enhanced check. Peter believes that his role is only eligible for a standard DBS check.

Dear Sir/Madam

RE:  APPLICATION ELIGIBILITY QUERY – URGENT

I wish to raise an eligibility query with the DBS in relation to a recently submitted application for an enhanced DBS check, the details of which are as follows:

[Full name, address, date of birth, position applied for, name of organisation or registered body and DBS reference number]

I have recently been offered the position of accountant for a large housing association, Employer C, and a request for an enhanced DBS check has been submitted. Based on the job description I have been given (please see attached) I believe that my role would only be eligible for a standard check for the following reasons:

  1. Employer C have stated that I will be working as an accountant in the ‘Adult Workforce’. Although my position is included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 which would make it eligible for a standard check, it is not included in the Police Act 1997 which makes it eligible for an enhanced check.
  2. Employer C provide housing and maintenance services to residents living in the Leeds area. They also offer support services to their residents, some of whom may be considered vulnerable. However, my role is an office based one, dealing with the corporate affairs of the organisation and, during the course of my work I will have no contact with any of Employer C’s clients.
  3. Since qualifying as an accountant 10 years ago, I have been employed by three companies. Two of these requested basic checks and one a standard. It’s not normal practice for an accountant to have an enhanced DBS check, for the reasons set out above.

Based on the above information I believe that my role of accountant for Employer C would only be eligible for a standard DBS check.

I would like the DBS to undertake an investigation as to the eligibility of this check and, until such time as an outcome has been determined, I would like the application for the enhanced DBS to be put on hold.

Yours faithfully

Peter Jones

Peter’s enhanced check has been put on hold by the DBS and he is awaiting the result of their investigation into eligibility.

What the DBS will do

Once the DBS has received your eligibility query, they will place the application on hold. They will contact the employer to gain more information, but they will not disclose that it is you that has queried the check. At some point the DBS will:

  1. Contact you to establish your details and get your consent to contact the employer.
  2. Contact the employer (normally by letter), to establish eligibility.
  3. If eligibility remains in doubt after first contact, correspond with the employer and liaise with DBS policy officials when assessing the organisation’s responses.

If the DBS decide the check is ineligible, the application will be stopped and the employer informed. The employer will still have the option of conducting a basic check on you if they feel it is appropriate.

If the DBS decide the check is eligible, the application will continue and the DBS will inform you of this. At this point you will have to decide if you wish to continue with your job application or withdraw it. If you continue then you should make sure you disclose any conviction to the employer that will be disclosed on the check. It is best to do this as soon as possible, face to face, so you can discuss any mitigating circumstances and answer any questions they may have in connection with the conviction.

Sometimes the DBS are unable to advise whether the role is eligible for the level of check being applied for. In this case, you will either need to raise your concerns with your employer or seek legal advice.

The results so far

In a Freedom of Information request, we asked the DBS how many times they had written to employers under their Ineligible Applications Process. Between March 2012 and February 2013, they had written to 3,311 employers. Of those, the results was that 1,385 applications were not completed, which works out at 42% of the ones that the DBS had looked into.

So the message we want to give is, if you think a job is carrying out an ineligible check, then challenge it.


Taking further action

If the DBS stops the application (or even if they don’t), you may decide to take further action. If an organisation submits an application for a position that they know is not eligible, they may have committed a criminal offence, as per the following: –

  • Section 123 of the Police Act 1997 states: “a person commits an offence if he knowingly makes a false statement for the purpose of obtaining, or enabling another person to obtain, a certificate under this Part.”
  • The DBS Code of Practice sets out employers’ obligations in respect of the use of information obtained through standard and enhanced check. A failure to comply with these provisions and performing ineligible checks beyond the scope of the Exceptions Order could lead to a breach of the Data Protection Act 1998.
  • The DBS Code of Practice requires that Registered Bodies must: “use all reasonable endeavours to ensure that they only submit Disclosure applications in accordance with the Disclosure eligibility criteria for relevant positions or employment.”
  • A signed statement has been made by a registered person.

Via the DBS

The DBS would first seek to stop the problem happening again by educating the organisation. If that was unsuccessful, the DBS would consider suspension. If the organisation persistently and knowingly submitted ineligible applications then they would be deregistered. However, this action is incredibly rare.

If you believe that the DBS has failed you in some way, you may want to take the matter further by making a complaint.

Via the ICO

The ICO expects the DBS to have preventative measures in place to prevent unauthorised checks. This is because they are defined as a ‘data controller’ under the Data Protection Act 1998.

If you believe that an ineligible check has been made by an organisation for your information you can call the Information Commissioners Helpline on 0303 123 1113 to discuss your complaint.

The ICO can only act once the organisation has obtained the information (as per Section 55 of the Data Protection Act). They normally require you (the complainant), to have some form of written evidence.

If you make a complaint, the ICO will decide whether the organisation has complied with the relevant legislation. The organisation will be informed of their decision, where they need to improve and how they need to rectify the situation with you. If an organisation does not show progress after a number of complaints on the same issue, the ICO’s enforcement team will take over and decide on further action.

Via the Ministry of Justice

Despite having policy responsibility for the ROA and its exceptions, the Ministry of Justice does not have a casework or investigative function. They cannot offer legal advice or investigate breaches of the ROA.

Via the Police

If you suspect that somebody has committed an offence under section 123(1) of the Police Act 1997 (see above), you can report it to the police. However, don’t be surprised if the police don’t make your case a priority. Despite the number of potential breaches, no Registered Body has yet been prosecuted under this section.

More information

  1. For practical self-help information – More information is avaliable in our understanding your criminal record section
  2. Our policy work – Read about the policy work we’re doing on the issue of ineligible checks
  3. Questions –If you have any questions about this, you can contact our helpline

Get involved

Help us to add value to this information.  You can:

  1. Comment on this information (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online forum

Types of criminal record checks

Download a short guide to this: Types of criminal record checks [PDF]


Aim of this information

This page sets out the types of criminal record checks that can be conducted by employers, the type of information that can be disclosed on each check and what convictions can be disclosed.

This information forms part of our disclosing to employers section.

Why is this important?

When you are applying for a job it’s important to know as much information as possible about the type of criminal record check that an employer may do. You can then make an informed decision as to whether you need to disclose your conviction or not.

By understanding the types of checks that are available to employers and what information is disclosed, you are less likely to either under or over disclose your criminal record. 

The main types of criminal record checks for employers

There are four types of criminal record check for employment purposes, basic, standard, enhanced and enhanced with barred list.

 

 

What criminal record checks disclose

Types of checks 2

For each conviction/caution disclosed, the certificate will state the court/police area, date of conviction/caution, offence and sentence/disposal. It will only disclose factual information, it does not give a description or account of the circumstances surrounding the conviction.

Information for all checks are taken from the Police National Computer (PNC). The only exceptions to this applies to some information on enhanced checks. “Police Intelligence”, comes from local police records and “barring list” information, comes from the Disclosure and Barring Service (DBS).

How many checks are carried out each year?

Overall, approximately 5.8 million criminal record checks are carried out each year (see further explanation below). Of these, roughly:

  • 28% are basic checks
  • 5% are standard checks
  • 67% are enhanced checks

What proportion of checks disclose criminal records?

The proportion of checks which disclose some type of information relating to cautions/convictions is roughly:

  • 1.67% of basic checks disclose unspent convictions
  • 5.62% of standard and enhanced checks disclose convictions/cautions

More information

  1. For practical self-help information – More information is available on our disclosing to employers and understanding your criminal record sections
  2. Questions – If you have any questions about this, you can contact our helpline

Get involved

Help us to add value to this information.  You can:

Download a short guide to this: Types of criminal record checks [PDF]

When and how to disclose to employers




Download a short guide to this: When and how to disclose to employers [PDF]

Aim of this information

The aim of this information is to assist you in applying for jobs when you have a criminal record. It should help you become more confident about when and how to disclose your convictions, ensuring that you only disclose what you need to.

This information forms part of our disclosing to employers section.

Why is this important?

It’s important that you’re aware of what you legally need to disclose to an employer. If you don’t disclose something that you should, this may result in a job offer being revoked or, worse still, being sacked once you’ve started the job. If you disclose too much however, your application may not be progressed through the recruitment process. Understanding when and how to disclose your criminal record should give you more confidence and hopefully increase your chances of gaining suitable employment.

Before you start disclosing

Before looking at when and how to disclose, there are a few other things to consider:


It’s important that you understand your criminal record. Although convictions and cautions stay on the Police National Computer until you reach 100 years old (they are not deleted before then), they don’t always have to be disclosed. Many people don’t know the details of their record and it’s important to get this right before disclosing to employers. Usually, this means applying for a copy of your police record (it costs £10 and is known as a Subject Access Request).

For most jobs you don’t need to disclose your criminal record once it’s ‘spent’. This is because of the Rehabilitation of Offenders Act 1974. Most convictions will become spent at some point. We have a tool that can help work this out, our disclosurecalculator or visit Rehabilitation of Offenders Act 1974. Some jobs involve standard or enhanced DBS checks. For these, you’ll normally need to disclose spent convictions and cautions as well, unless they are now filtered by the DBS. Visit filtering of spent cautions/convictions .

You only have to disclose your record to an employer if they ask you. Many employers ask at some point and if your convictions are unspent, you legally need to disclose them. If they ask you and you don’t disclose, they could later revoke the job offer or you could be dismissed. You could even face a further conviction. Visit disclosing to employers.

There are 3 main levels of criminal record check and which one is done by the employer depends on the job role. Make sure you know what level of check an employer is doing and only disclose what you legally need to. Spent convictions are not disclosed on basic checks. Filtered cautions/convictions are not disclosed on standard or enhanced checks. Visit criminal record checks for employment .


When to disclose?

Work with the employer’s process – “Disclose when asked”

Different employers recruit in different ways, so the point that you get asked about your criminal record may not be the same for every job that you apply for. Your first step should be to understand the employer’s process as best as you can, so you can make an informed decision. Check their application form or recruitment policy – does it say anything about if or when they ask about criminal records?

Generally, it’s best to disclose at the earliest stage required (i.e. when you get asked), because that’s when they’ve asked (so that’s when they’re expecting to be told), and you won’t feel like you’re ‘hiding’ something. However, there are some exceptions to this. For example;


If an employer indicates that they’ll be carrying out a formal criminal record check, they should ask you to disclose before they do the check, but not all do. In this situation, we’d always advise that you disclose before the formal disclosure is carried out.


Many employers have a ‘tick-box’ on their application form. We encourage employers to ‘ban the box’ but many still ask in this way. Some people prefer to ‘tick no’ and disclose at a later stage when they believe they’ll get a chance to explain. This has the downside of effectively ‘lying’ to the employer on the application form. It’s also unlikely to be a sensible step for people on licence, on probation or who are barred.

CV’s and covering letters

Many jobs ask for a CV and a covering letter. A CV is designed for you to sell yourself as the best person for the job – you shouldn’t normally include any information about your criminal record on your CV. If you have gaps due to time in prison, you could say that you were ‘unavailable for work’, or if you completed qualifications inside, list these instead. However, you must be prepared to honestly explain what you mean by ‘unavailable for work’ if you get asked.

Choosing whether to disclose in writing or in person

Often, how you disclose will come from how the employer asks. If possible, tell the employer in the way that you feel most comfortable with. This will depend on how you feel about talking and/or writing about your criminal record. It might also depend on the nature of your convictions and the type of job you’re applying for. Usually, the employer’s policy will lean you towards a certain way. Either way, we recommend that you provide the employer with the brief factual details of your criminal record in writing at some point during the recruitment process, so that you have evidence of what you’ve disclosed – keep a copy of this for your own records too.

Read this personal story which highlights the importance of putting something in writing to an employer – “Let me put that in writing” – Why you should always confirm your criminal record in writing what you’ve said verbally

Preparing to disclose

If an employer wants to know about criminal records, they will normally ask you to disclose in a certain way; this might be at interview or after they’ve made a conditional offer. Some employers ask on their application form. Where possible, we suggest that you disclose your record face-to-face; this tends to be most effective. Prepare a self-disclosure statement; this should help. Address any concerns you think they may have but stay positive and don’t concentrate solely on the negatives of a conviction.

Think like an employer – Prepare for questions

However you choose to disclose, you should be ready for extra questions that the employer might have. The questions below are ones that employers often ask, so think about how you’d answer them;

  1. Can you tell me about your criminal record?
  2. Why did you commit the offences?
  3. Was there anything happening in your life at the time?
  4. How can I be sure you’re not a risk?
  5. What steps have you taken to change your ways?
  6. How is your life different now?

Write a self-disclosure statement

Before applying for jobs, we advise that you write down the details of your criminal record. We refer to this as a ‘self-disclosure statement’. This might be sent with your application if they ask a question about convictions, or you might use it when disclosing in person. However, it can be hard to communicate feelings and emotions in writing. Generally, you should:

It should be no more than one side of A4.

It needs to be tailored to the specific vacancy. Your criminal record may be more relevant to some jobs than it is to others. Don’t copy ‘templates’. The best and most effective disclosures are those that are written by you personally and are genuine. Visit self-disclosure statement/letters for some examples of self-disclosure statements.

Write it so that people with no experience of criminal records can understand it.

This will depend on what you think works best for you, but generally:

a) Start with something positive, like why you’re applying for the job and what skills and experience you bring to the role
b) Next, explain your convictions (see below)
c) Finally, finish with a strong and positive closing statement. You should offer the names and contact details of people who can vouch for you and your suitability.

If you struggle, get help. Probation staff, employment advisor’s and family members can help. Get somebody you trust to check it over, but make sure you write it in your own words.


Explaining your convictions

The most important part of a self-disclosure statement is explaining your convictions. Make sure that you relate it to the job that you’re applying for. You need to try and put yourself in the employer’s shoes – they’ll be making a judgement based on the information you provide. So, make sure you explain:

If the offence happened a long time ago (even if the convictions were quite recent) then highlight this.

If the offence was a one-off and out of character, this is important to point out. If you committed a number of offences over a period of time, try to group them. For example; “between 2004 and 2007, I was convicted four times for theft-related offences”.

If the offences are not particularly relevant to the role in question, explain this. Offence categories can include a wide range of behaviour which can make it difficult for employers to judge whether the offence is relevant to the job. For example, “theft” could be stealing a 50p chocolate bar, or £20,000 from a bank. Tackle any issues with your record which you think might be relevant to the role. For example, if your offence was violence-related and you’re applying to work with children, refer to any recent experience you have.

Some offences sound more serious than the circumstances were. This is usually shown in the sentence that was received, so if this is the case, highlight that.

If there were specific circumstances which led to your offending, explain these. For example, you may have been homeless at the time that you stole from a supermarket. This kind of information can help the employer to better understand.

When explaining the circumstances, be careful not to let these reasons come across as excuses. Employers generally look for people who are taking responsibility. If you took responsibility for the offence – for example, by admitting it to the police when they arrested you – then you should make this clear to the employer.

Whatever the reasons that led to your offences, you should explain how you’ve addressed these, to reassure the employer that you won’t be repeating them again in the future.

The employer may have concerns, or think they are taking a risk. You need to explain yourself and reassure the employer.


How to disclose

Disclosing on an application form

The ‘ban the box’ campaign encourages employers not to ask about criminal records on application forms but instead leave it until later in the process. See who’s signed up by visiting the Ban the Box website. However, many employers still have a section about criminal records.

Even if you’re asked at this stage, you might choose to be careful what you disclose. Some will just have a ‘tick-box’, whereas others might have space to explain. The question will also often vary. Generally, we advise against disclosing specific details on application forms. Instead, you could:

  1. State on the application form that you’re sending a self-disclosure statement.
  2. Write on the application form “Yes – happy to discuss if selected for interview”. Withholding details until interview might give you the chance to explain face to face, although if it’s clearly minor or irrelevant, you could state this; e.g. “Motoring fine 30 years ago”.
  3. Not disclose and wait until interview – see ‘when to disclose’ above for more details.

Disclosing in writing

If you’re asked to provide details at application, you might choose to send a copy of your self-disclosure statement alongside your application. We wouldn’t normally advise this, but if you do, make sure that you:

  1. Send it to the right person – If you’re not sure who this is, then ask. Send it in a sealed envelope marked ‘confidential’.
  2. Keep a copy – This is useful as evidence of what you’ve disclosed.
  3. Offer to meet with them – You should offer to have a face-to-face discussion to discuss any concerns that the employer might have.

Disclosing in person (at interview or after job offer)

You need to be prepared to talk about your criminal record at interview;

  1. If you’ve not been asked as part of the initial application process, you might be asked at interview.
  2. If you mentioned your criminal record in your application, you might be asked for more details at interview.
  3. If the application form did ask but you chose not to disclose it through fear of being automatically rejected, you’ll need to make sure that you proactively raise this at interview (and you’ll need to explain why you didn’t disclose it on the application form).

Some employers don’t ask about criminal records at interview. Some employers wait until after the job offer to ask. This is something that we recommend as good practice. If this applies, they will hopefully make this clear in their recruitment policy.

Disclosing in person – Top 10 tips

Many people feel most comfortable disclosing face-to-face. In our experience, this is what works best for individuals to explain and employers to understand. Whether at interview or a later stage:

This will help you to reduce the chances of being caught off-guard by a question about your criminal record, or gaps in your employment history for when you were in prison. Make sure you know the details of your criminal record inside out. Hesitation or vagueness may make you look dishonest. Take your self-disclosure statement with you so that you have the facts written down. You might want to have a simple summary of factual information that you can offer to leave with the employer. Think like an employer – prepare for questions that they might ask.

Do some role-plays or a trial-run beforehand with someone you trust.

If you were asked at application, we suggest you proactively mention at interview what you put in your application. This shows initiative and helps to avoid problems later down the line. For example, you might say: “As you saw on my application form, I have a criminal record. If you have any questions for me, I would be happy to discuss them, as I’m keen to address any questions or concerns that you may have”. Even if it doesn’t come up at interview and you weren’t asked at application, you might choose to bring it up if you think it’s your best chance to explain.

Make sure you keep your explanation simple and focused – don’t babble. Watch the interviewers’ body language to judge the right level of detail. There’s always a risk that you let your criminal record dominate the interview.

It’s difficult to be relaxed in any interview. Try not to come across as being defensive.

Almost one in four people of working age have a criminal record. Employers are likely to have experienced criminal record disclosures before.

Answer questions directly and honestly. Make sure you disclose all that you need to.

Try not to focus entirely on the negative results of your record. Talk about what you’ve learnt and how you have become a better person as a result. Show that you have the right skills and experience for the role.

If you’re able to, back up things that you say with details from others. For example, you can often get confirmation that you’ve completed your community service, a letter from your probation officer and sometimes get copies of pre-sentence reports and sentencing remarks. We normally advise against providing a copy of your formal criminal record – if the employer needs one, they will usually apply for it (with your consent) after they’ve offered you the job.

Provide the employer with a written record of what you’ve disclosed. This can be your self-disclosure statement or it might just be brief factual records. It might not necessarily be the people interviewing you that will make the ultimate decision, so having something in writing to hand over might come in useful.


More information

  1. For practical self-help information – More information is available on the following:
  2. To discuss this issue with others – Share your experiences on our online forum
  3. Questions – If you have any questions about this, you can contact our helpline

Download a short guide to this: When and how to disclose to employers [PDF]

This information page was last updated in December 2024.

 

Finding out about your criminal record

Download a short guide to this: Finding out about your criminal record [PDF]


Aim of this information

Finding out what’s on your criminal record will assist you when it comes to dealing with employers and other organisations (for example insurance companies). Once you have this information you will be able to work out if your convictions are spent or filtered, thereby giving you a better understanding of whether or not you need to disclose your convictions.

This information sets out the different ways in which you can find out the details of your criminal record and how to apply for them.

This information forms part of our disclosing to employers section.

Why is this important?

There are millions of people in the UK with a criminal record. You will probably have a criminal record if you have ever accepted an official police caution, pleaded guilty or been found guilty in a criminal court.

Employers, insurers, and others might ask you for details of your criminal record, and if the information you disclose is not accurate, this could cause you problems at a later stage.

It’s important therefore that you find out what’s contained on your criminal record, to enable you to disclose the correct information when asked. This will prevent you from disclosing inaccurate information, disclosing too much information or not disclosing what you are legally obliged to disclose.

Introduction

Before you start thinking about how and when to disclose, you need to know what to disclose. It’s a good idea to know this as soon as possible and before applying for a particular role.

There are various types of criminal record checks. The most common are those which relate to employment and are referred to as basic, standard or enhanced DBS checks. You can apply for your own basic DBS check. However, you cannot apply for your own standard or enhanced DBS check.

Ways of finding out your criminal record

Depending on what type of job you’re applying for, there are two different ways to find out about your criminal record for disclosure purposes:

1. Basic DBS check

  • If you’re applying for a job that is covered by the Rehabilitation of Offenders Act 1974, the employer may carry out a basic DBS check. You can apply for this yourself through the Disclosure and Barring Service.
  • It costs £21.50, and will show any unspent criminal convictions.
  • For more details, see our information on basic DBS disclosures.

Click above image for an example of a basic DBS certificate showing unspent convictions

2. ‘Subject access request’ from the police

  • If you’re applying for a job that is not covered by the Rehabilitation of Offenders Act 1974, the employer may carry out a standard or enhanced criminal record check.
  • You’re unable to apply for your own standard or enhanced criminal record check in advance.
  • However, under the Data Protection Act, you’re able to ask the police for a copy of your criminal record. This is known as a ‘subject access request’ (SAR).
  • The SAR is free, and the police have up to one calendar month to supply it. For more details on how to apply, see our information on police records.

SAR (PNC) front page

Click above image for an example of a NPCC no trace letter and a four page Police Record SAR

When you apply for your SAR, depending on what you want, you can request to see:

  • A copy of your national PNC (Police National Computer) record – this will show all convictions and cautions that are held on the PNC. This is useful if the criminal record check you’re planning to do in the future is a standard one.
  • A copy of your national PNC and local police records if the criminal record check being carried out is an enhanced one. This will show all convictions and cautions that are held on the PNC, as well as any information held locally by the police.
  • This document should only be used to help you understand your criminal record. If you want to know what will be disclosed on a standard or enhanced check, you’ll need to use the information disclosed to work out if anything will be filtered.
  • On enhanced checks local police records may also be disclosed, if the police force consider they are relevant to the role being applied for.
  • You should not be required to provide the SAR report to an employer, insurer or other organisation. This is known as enforced subject access and is a criminal offence.

There are also other ways of finding out about your criminal record, such as a police certificate (used for travel purposes). For more information, go to our information on understanding your criminal record.

Basic DBS check or SAR?

With SAR’s being free of charge, you might assume that this is the best option available. However, it’s important to remember that what you see on your SAR will be different to what you’ll need to disclose to an employer. An SAR provides details of everything that’s held about you on the Police National Computer (PNC), it doesn’t differentiate between spent and unspent convictions. If you’re not really careful you could easily find yourself disclosing too much to a potential employer.

If you’re applying for jobs in the future that involve basic checks. In particular, if you think your conviction is spent and you’re planning not to disclose it to an employer.

  • If you’re applying for jobs involving standard/enhanced DBS checks.
  • If you want to know if something will be filtered and need to work it out.
  • If you want to find out what information the police hold about you.

More information

  1. For practical self-help information – More information is available in our disclosing to employers and understanding your criminal record sections
  2. Questions – If you have any questions about this, you can contact our helpline.

Get involved

Help us to add value to this information. You can:

  1. Comment on this information (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online forum
  4. Share your personal story by contributing to our online magazine, theRecord

 

Download a short guide to this: Finding out about your criminal record [PDF]

 

What will be disclosed on a basic DBS check?

Download a short guide to this: What will be disclosed on a basic DBS check? – Simple guide [PDF]

Download: FAQ’s on ROA and basic DBS disclosures [Webpage]

Aim of this information

Basic DBS checks can legally be carried out by any employer or voluntary organisation as part of their recruitment process. They may also be required if you need to make an insurance claim.

This information sets out what will be disclosed on a basic DBS check and how you can apply for one. This information forms part of our disclosing to employers section.

Why is this important?

If you’re applying for jobs which may require a basic DBS check, it’s important that you know what will be included on the certificate. This will ensure that you disclose accurately what you’re legally obliged to disclose, while helping to make sure you don’t over disclose.

Types of roles that commonly require a basic DBS check

Any role that is covered by the Rehabilitation of Offenders Act can request a basic DBS check, for example supermarkets, delivery companies and warehouse roles.

What will be disclosed on a basic DBS check

A basic DBS check will disclose any convictions which are unspent. To find out whether your conviction is currently unspent, you can use our disclosure calculator. 

If you do have unspent convictions,  the basic DBS check will give details of the date of conviction, the name of the court you appeared in, the offence committed, the date of the offence and the sentence received.

What will not be disclosed on a basic DBS check

Basic DBS checks do not disclose any convictions which are spent, cautions, fixed penalty notices or allegations.

An example of a basic DBS certificate with unspent convictions

How to know whether your convictions are spent

This is worked out by the Rehabilitation of Offenders Act 1974 – see the table below.

For more information, see our information on the Rehabilitation of Offenders Act or visit our disclosure calculator.

 

How you can apply for a basic DBS check

You or an employer on your behalf (and with your consent), can apply for a basic DBS check. It costs £21.50 and is issued by the Disclosure and Barring Service who will send it to you, unless you choose for it to be sent to the employer. It normally takes about 14 days to receive the certificate. If all of your convictions are spent, the certificate will come back ‘blank’.

Find out the contact details of Disclosure and Barring Service.

More information

  1. For practical self-help information – Further information can be found on our :
    1. disclosing to employers section
    2. understanding your criminal record section
    3. Rehabilitation of Offenders Act 1974 section
    4. or visit our disclosure calculator to work out whether your conviction is spent
  2. To discuss this issue with others – Read and share your experiences on our online forum.
  3. Questions – If you have any questions about this, you can contact our helpline.

Download a short guide to this: What will be disclosed on a basic DBS check? – Simple guide [PDF]

Download: FAQ’s on ROA and basic DBS disclosures [Webpage]

 

What will be disclosed on a standard or enhanced check?


Download a short guide to this: What will be disclosed on a standard or enhanced check? – Simple guide [PDF]


Aim of this information

Some jobs and courses are ‘exempt’ (i.e. not covered) by the Rehabilitation of Offenders Act, which means that instead of being able to do a basic criminal record check, organisations are able to carry out a standard or enhanced check, depending on the role.

This information sets out what roles require a standard or enhanced check, what’s included on the certificates and how you apply for them.

This information forms part of our disclosing to employers section.

Why is this important?

It’s important to know the types of roles which require a standard or enhanced check, as this should assist you in establishing which type of check a job you are applying for, is eligible for.

If you know what will be included on a standard or enhanced check, you can ensure that you only disclose what you are legally obliged to disclose and that you don’t over disclose.

Introduction

If a role is exempt from the Rehabilitation of Offenders Act, then an employer will be eligible to apply for a standard or enhanced check. These are provided by the Disclosure and Barring Service (DBS) using information from the Police National Computer (PNC). More information can be found on this in our Disclosure and Barring Service section.

Types of roles that commonly require standard and enhanced checks

The types of positions that may be eligible for standard or enhanced checks are contained in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. You can also visit our information on eligibility for standard and enhanced checks.

Some examples of the types of roles eligible for standard and enhanced checks are:-

Standard checks

  • Security industry licence
  • Solicitor or Barrister
  • Accountant
  • Veterinary surgeon
  • FCA ‘approved person’ role
  • Football stewards
  • Traffic warden
  • Member of the Master Locksmiths Association

Enhanced checks

  • Working with children and vulnerable adults
  • Teacher
  • Social worker
  • NHS professional
  • Carer
  • Taxi driving licences

What standard and enhanced checks disclose

Standard and enhanced checks will disclose all convictions and cautions held on the PNC and previously ‘stepped down’ cautions/convictions, unless they are now filtered. The certificates will not distinguish between convictions which are spent and those which are unspent.

Enhanced checks may also disclose police intelligence (if the police deem it relevant).

If an enhanced plus barring check is being carried out it will also include a check of the Children’s and/or Adults Barring List (if specified).

What standard and enhanced checks do not disclose

Cautions and convictions that are filtered by the DBS will not be disclosed on standard or enhanced checks.

How standard and enhanced checks are applied for

An employer can only apply for a standard or enhanced check where the role applied for is eligible. If you believe that a role you are applying for is not eligible for this level of check, you can challenge it through the Disclosure and Barring Service (DBS).

Employers need your consent before they can apply for a standard or enhanced check. The certificate will usually be sent to you, unless you have signed a waiver, requesting it be sent to your employer.

It is not possible to apply for a standard or enhanced check on yourself.

More information

  1. For practical self-help information – More information can be found in our disclosing to employers and understanding your criminal record sections
  2. To discuss this issue with others – Read and share your experiences on our online forum
  3. Questions – If you have any questions about this, you can contact our helpline

 Get involved

Help us to add value to this information. You can:

  1. Comment on this information (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online forum
  4. Share your personal story by contributing to our online magazine, theRecord

Download a short guide to this: What will be disclosed on a standard or enhanced check? – Simple Guide [PDF]

 

A simple guide to the Rehabilitation of Offenders Act 1974 (ROA)

Aim of this information

On the 28 October 2023, changes were made to the Rehabilitation of Offenders Act 1974. This information reflects the situation after these changes.

Why is this important?

Once your conviction is spent, you don’t need to disclose t it when applying for jobs requiring a basic DBS check and insurance. This means you can generally answer “no” to the question about convictions. Being aware of how the law works will ensure you are able to work out if your convictions are spent or not.

What is the Rehabilitation of Offenders Act?

The Rehabilitation of Offenders Act 1974 gives people with spent convictions and cautions the right not to disclose them when applying for most jobs, and buying insurance.

What are the benefits of it?

The main benefits of the Act relate to applying for work and insurance. Generally, once spent, you can legally ‘lie’ about your past convictions by answering ‘no’ to a question about convictions.

Applying for work

Once your convictions are spent, the Act gives you the right not to disclose them when applying for jobs, unless the role is exempt from the Act. Most employers with jobs covered by the Act will only ask for ‘unspent’ convictions. If they ask about all convictions, you should check what level of disclosure they’re entitled to, and if it’s only a basic DBS disclosure, then this may be an ineligible check and you can legally withhold any spent convictions.

Applying for insurance

Once your convictions are spent, the Act gives you the right not to disclose them when applying for insurance. For example, spent motoring convictions do not need to be disclosed when applying for car insurance. This applies no matter what question an insurance company asks. Most will only ask for unspent convictions, although some might ask for ‘any convictions in the last 5 years’. If it’s spent, you do not need to disclose it under any circumstances when applying for insurance.

What doesn’t it cover?

  1. It only applies in England and Wales. If you’re applying for work in another country you’ll need to check the disclosure laws that apply in that country.
  2. You may have to disclose spent convictions when applying for jobs that are exempt from the Act. These will normally involve a standard or enhanced DBS criminal record check.

Rehabilitation periods for specific sentences

Prison sentences and community orders

 

A community order which has no specified end date will have a default rehabilitation period of 2 years. The rehabilitation period won’t be halved if you were convicted when you were under the age of 18.

Prison sentences of over 4 years

A prison sentence of over 4 years can be spent after 7 years providing the offence you were convicted of is not listed in Schedule 18 of the Sentencing Act 2020 or is a Public Protection Sentence.

The types of offence which would be excluded from rehabilitation are:

Other community sentences

What about further convictions?

If you already have an unspent conviction and you get a further conviction before the earlier one becomes spent, then neither conviction will become spent until the longest of them does. If the further conviction results in a prison sentence of more than 4 years, then potentially neither the second nor the first conviction will ever become spent.

How do I work out if my convictions are spent?

If you only have one conviction, it should be relatively straight-forward to establish whether your conviction is spent by using the tables in this guide. If you have got a number of convictions, it might be more difficult. You can use our online disclosure calculator which will help you to work it out.

Can I get a copy of my unspent convictions?

Yes. You can obtain a list of your unspent convictions by applying for a basic DBS disclosure from the Disclosure and Barring Service. The current cost is £18. An employer may also carry out a basic DBS disclosure as part of their recruitment process (but they’d need your permission to do this).

When can spent convictions be taken into account?

There are many jobs or roles where you might need to disclose your spent convictions particularly when applying for certain jobs or volunteer work. Examples include:

  • Working with children and other vulnerable groups (jobs such as teachers, social workers, doctors, dentists, chemists and nurses).
  • Working in professions associated with the justice system (such as solicitors, police, court clerks, probation officers, prison officers and traffic wardens).

These jobs will usually involve a standard or enhanced DBS criminal record check. It is important to realise that these types of checks will show both spent and unspent convictions and cautions. The only exception to this is where your caution or conviction is eligible to be filtered.

Only an employer can apply for a standard or enhanced DBS disclosure, you are not able to apply for your own. However, it’s really important that you find out exactly what your criminal record is so that you know what you do and don’t have to disclose. You can apply for a Subject Access Request (SAR), from your local police force. This is a copy of your criminal record and is free of charge. It provides information that is held on the Police National Computer (PNC), about you. This is for your information only and shouldn’t be given to an employer. If an employer forces you to give them a copy of your SAR, this is now a criminal offence and employers can be prosecuted for this. There are other times when spent convictions might be taken into account, including:

  1. When applying to stay in the UK (i.e. immigration and nationality decisions).
  2. When travelling abroad to another country.

What does it mean if I have…?

  • If asked by an employer, you have to disclose them, and they can legally refuse you or discriminate against you.
  • They will be disclosed on all types of criminal record disclosure (basic, standard and enhanced).
  • If asked, you will have to disclose them when applying for financial products and services, such as insurance, a mortgage or renting a house.
  • You could be prosecuted if you fail to disclose them when asked.

  • For most jobs, you do not need to disclose them to an employer, even if they ask about convictions.
  • They will not be disclosed on a basic DBS criminal record check.
  • For some jobs (those exempt from the ROA), you may need to disclose them if asked – these jobs will usually involve a standard or enhanced DBS criminal record check. If your conviction is filtered, then you do not have to disclose, however, if it is not filtered an employer can legally refuse you or discriminate against you.
  • You do not need to disclose them to insurers when purchasing insurance.
  • You might need to disclose them when travelling or working outside of England and Wales.
  • They will remain on your record for life – they will not be deleted

More information

  1. For practical self-help information – More information is avaliable on our:
  2. Our policy work – Read about the policy work we’re doing on this issue
  3. Questions – If you have any questions about this, you can contact our helpline

Get involved

Help us to add value to this information.  You can:

  1. Comment on this information (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online forum
  4. Share your personal story by contributing to our Community

 

This page was last fully reviewed and updated in October 2023. If you’ve spotted something that needs updating, please let us know by emailing the details to advice@unlock.org.uk.

Getting a reference from a previous employer

Please note: This information is quite new. Let us know what you think of it and how it could be improved. Leave your feedback here. We will be updating it more as time goes by – to be alerted when it gets updated, sign up to our mailing list.

Aim of this information

This information aims to set out what legal obligations a previous employer has when providing you with a reference, what employers are most likely to mention in a reference and whether they are entitled to disclose details of any convictions (unspent or spent) which they may be aware of. It also looks at alternative referees if you are unable to get a reference from a previous employer.

It’s part of our information on looking for (and keeping) employment and volunteering.

Why is this important?

Once you have been offered a job, most employers will ask you to supply at least one reference from a previous employer. For most people, this will not present any problems. However, if you’ve not been working for a while (perhaps as a result of a prison sentence), or if you were sacked by your previous employer (linked to the criminal record you now have) then you may be worried about asking them for a reference.

If your previous employer is aware of your criminal record – because you received it during the course of your employment or it was unspent at the time you were taken on by them – then it’s important that you know what they can and can’t disclose in a reference.

Is my previous employer obliged to provide me with a reference?

Your previous employer is under no legal obligation to provide you with a reference. However, there are several exceptions in which you may be entitled to one:

  • An employer must give you a reference if there was a written agreement to do so.
  • Where the reference is needed by a regulatory body – this may be somebody like the Financial Conduct Authority to ensure that people employed to give financial advice are qualified to do so.
  • If your former employer agreed orally to provide you with a reference and is now refusing to, you may still be entitled to one, although this is probably going to be difficult to prove.
  • If your previous employer’s behaviour led you to believe that you would receive a reference. You may have grounds to claim a reference if, for example, they have always provided references to previous employees.

What if my employer refuses to give me a reference?

If your employer refuses to give you a reference, then this may ring alarm bells with your new company. However, some companies are increasingly refusing to give references because they’re worried about legal action.

You are likely to be asked to provide 1 or 2 work references and possibly, a personal reference – so choose carefully. If the organisation is satisfied with the majority of your references then they may not argue about one being refused.

Can my previous employer write something bad about me just because they do not like me?

No. The law states that any reference must be ‘fair, truthful and accurate’ and your referee should not mislead the employer asking for the reference in any way.

If you believe that you have been given an inaccurate, incorrect or misleading reference then you may be able to sue your previous employer for damages if you were able to prove that the reference prevented you from getting a job or, you suffered some other financial loss as a result of it. In some cases, you may also be able to bring an action against them for defamation.

What is my previous employer most likely to mention in a reference?

An employer can include details about your work abilities and performance together with the reasons why you left the job. However, employers are increasingly reluctant to provide too many details in a reference because they are worried about claims for defamation of character and other types of legal action that former employees can take. Therefore, they tend to provide the bare minimum for references, simply mentioning the job title and the dates when you were employed.

The duty for a referee to provide a true, accurate and fair references means that they will usually avoid:

  • Failing to respond to specific questions in a reference request without explaining why
  • Omitting key information that a new employer would expect to be disclosed
  • Organising the information in a way that would give a reasonable person a wrong inference or impression of you

What do employers tend to ask for from references?

We’ve seen examples of employers asking referees to provide details of criminal record. See an example below.

reference

If your previous employer is aware of your criminal record or any pending prosecutions, then the Data Protection Act states that they should class this as ‘special category data’. This is information which could be used in a discriminatory way and needs to be treated with greater care than other personal data.

If your previous employer is asked therefore whether they are aware of any criminal convictions or cautions on your record then, unless they have your explicit consent to do so, they should not respond to this question.

If you were able to prove that they had provided this information (possibly by submitting a subject access request to your current employer), then you would have the right to claim compensation from your referee as they would be in breach of the Data Protection Act.

In addition, under the Rehabilitation of Offenders Act, your referee must not disclose details of any spent convictions to prospective employers.

What can I do if my referee mentions my criminal record?

If you have been refused employment because a referee revealed a spent conviction, there may be a case for compensation through loss of future earnings due to your previous employer’s reference.

You may be able to take the matter to an employment tribunal. The Advisory Conciliation and Arbitration Service (ACAS) or the Information Commissioners Office (ICO) may be able to provide you with assistance on issues relating to data use and protection.

Can I see the reference that my previous employer wrote?

Your previous or current employer do not have to automatically show you a reference they have written about you. Once you start a job with a new employer, you can ask them for a copy of any reference they have been given from your previous employer. This is a right under the Data Protection Act. Your previous employer is not obliged to provide you with such a copy.

If you didn’t start work with the new employer (maybe because the job offer was revoked as a result of a ‘bad’ reference), you can still request a copy of the reference from them. There is no obligation on an organisation to keep information relating to ‘potential employees’ and you may find that they no longer have it.

To request a copy of your reference, you will need to make a subject access request in writing to your new employer. They will then consider if any exemptions apply and if they can release the information to you.

What can I do if I can’t get a reference from my previous employer?

Without a reference to explain whether or not you are suited to the work, an employer may lack crucial information about you. This may be especially problematic if you are applying for a position of responsibility.

Assuming that a reference is necessary, try to secure a good character reference. If these are from mature professionals (e.g. doctor, teacher etc), they may carry enough weight to satisfy an employer.

If you are still in touch with any co-workers, mention to the employer that you could provide details of former colleagues who would be able to speak about you in a work capacity. Alternatively, consider any clients that you may have had in the past who might be prepared to provide you with a reference.

Remember that a reference can also come from any temporary or voluntary work you’ve undertaken.

Who can provide me with further information and assistance?

As mentioned above, ACAS and the ICO are both relevant here. Find out their details on our important links page.

Frequently asked questions

No. A ‘bad’ reference is allowed, provided that it is not malicious and that the employer took reasonable care to ensure that the information was correct.

More information

  1. Practical self-help information – We have more information on looking for (and keeping) employment and volunteering.
  2. Discuss the issue – Read and share your experience on our online forum.

Get involved

Help us to add value to this information. You can:

  1. Comment on this information below.
  2. Send your feedback directly to us.
  3. Discuss your views and experiences with others on our online peer forum.
  4. Share your personal story by contributing to our online magazine, theRecord.

Becoming a Police and Crime Commissioner (PCC)

Aim of this information

This information forms part of our section on looking for employment and common occupations and professions.  It provides details of how people who have a criminal record will be dealt with if they are looking to become a Police and Crime Commissioner (PCC).

Why is this important?

Campaigning to be a PCC can be expensive (the average candidate in 2012 spent £11,220), and this is a significant amount of money if it later transpires that you are not eligible to stand for election because of your criminal record. The other thing to consider is the considerable media interest that PCC elections can elicit. If you are found to have a conviction that makes you ineligible to stand and you have to step down or resign, you may find that this is reported in local newspapers, bringing it to light again.

Introduction

Elected Police and Crime Commissioners (PCC’s), were established in 2011 to replace Police Authorities in England and Wales.

The first elections for PCC’s were held in 2012 and the second took place on 5th May 2016.

What’s the role of a PCC?

The role of the PCC’s is to be the voice of the people and hold the police to account. They are responsible for the totality of policing.

They are elected by the public to hold Chief Constables and the force to account. This effectively makes the police answerable to the communities they serve.

Under the terms of the Police Reform and Social Responsibility Act 2011, PCC’s must:

  • Secure an efficient and effective police force for their area.
  • Appoint the Chief Constable, hold them to account for running the force and, if necessary, dismiss them.
  • Set the police and crime objectives for their area through a police and crime plan.
  • Set the force budget and determine the precept.
  • Contribute to the national and international policing capabilities set out by the Home Secretary.
  • Bring together community safety and criminal justice partners to make sure local priorities are joined up.

Further details on PCC powers and responsibilities can be found on the Home Office website

Will a criminal record stop me standing as a candidate?

 The Police Reform and Social Responsibility Act 2011, section 66 states that

‘An individual will be disqualified from being elected as a PCC if they have been convicted in the United Kingdom, the Channel Islands, or the Isle of Man, of any imprisonable offence – whether or not actually sentenced to a term of imprisonment in respect of the offence.’

There’s a couple of important points to make about this definition:

  • An imprisonable offence is one for which a person who has attained the age of 18 may be sentenced to a term of imprisonment.
  • No exceptions are made for convictions as a juvenile, spent convictions or convictions that would be filtered by the DBS.
  • The easiest way to check if an offence is an imprisonable offence is to check the relevant legislation for the offence.
  • As the law refers to any imprisonable offence, it includes very minor offences where the maximum term of imprisonment would be very short, and even if the actual sentence wasn’t prison

What is not covered by this?   

The following do not appear to be grounds for disqualification:

  • Convictions in other countries
  • Court disposals that were not convictions (e.g. a conditional discharge)
  • Out of court disposals (including cautions)

For further information, see guidance published by the Electoral Commission.

What questions will I be asked about my criminal record?

PCC posts are exempt from the Rehabilitation of Offenders Act , so a DBS check could be carried out.  It is much more likely that the security vetting applicable to all police jobs would be used.

Candidates for election have to confirm on their nomination papers that they are not disqualified from standing and it is a criminal offence to make a false statement.

If it is subsequently found that an elected PCC has a conviction it is very likely that another candidate, or an elector, could challenge the election.

Personal experiences

The elections in 2012 flagged up two cases where PCC candidates were forced to step down after very old convictions came to light.

Falkland’s war hero, Simon Weston pulled out of the election to become the PCC in South Wales after his criminal conviction for being a passenger in a stolen car at the age of 14 was questioned.

The Home Secretary, Theresa May, said that the legislation was not aimed at barring someone like Simon Weston from becoming a PCC. In direct contrast however, an independent election lawyer stated that if he were to go ahead and stand as a candidate then he could be accused of signing a false declaration at the time of this nomination.

Simon Weston later resigned and tweeted ‘With regret I am pulling out of the PCC role in South Wales having become disillusioned by the fact it was getting too political and not serving the people’.

Read more about this story here.

 

Bob Ashford received a conviction aged 13 for trespassing on the railway with an offensive weapon. He was fined two pounds and 10 shillings. When he filled in his application to become a PCC he was asked if he had any criminal convictions to which he answered ‘Yes’. The Labour party executive committee agreed that they were happy for him to be one of their candidates and he started campaigning.

When Simon Weston’s eligibility was queried and he stepped down, Bob Ashford realised that an offence of trespass on the railway and possessing an offence weapon were considered imprisonable offences and he took the decision to resign. Read Bob’s story here.

He went on to set up the Wipetheslateclean campaign, which Unlock supports.

 

In August 2016, UKIP’s leadership candidate Steven Woolfe admitted that he failed to declare a criminal conviction for drink driving when he stood for Police and Crime Commissioner in 2012. Mr Woolfe came last in the PCC election with 8.55% of the vote.

There are concerns within UKIP that this revelation may have an impact on his leadership ambitions. Read the whole story in the Huffington Post.

 

There was a further case where a candidate was able to successfully argue that his offence was not imprisonable – he ended up being successful in the election.

Alan Charles stood down from running as PCC in Derbyshire after being told that a conditional discharge he had been given when he was 14 barred him from running for election.  However, barristers and legal experts advised that his conditional discharge would not disqualify him.  For further information see this BBC news story.

Below you will find links to useful websites relating to this information.

Associataion of Police and Crime Commissioners is the national body that support Police and Crime Commissioners.

More information

  1. Practical self-help information – More information on security vetting can be found here .
  2. Discuss the issue – Read and share your experiences on our online forum.

Get involved

  1. Comment on this information (below)
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Receiving a criminal record whilst you’re in employment

Aim of this information

This information is designed to set out what you need to consider if you receive a criminal record whilst you’re in employment. It highlights your basic employment rights and some organisations that can provide you with additional information, advice and support.

Why is this important?

  • Much of the disclosure information we provide is based around disclosing convictions obtained prior to applying for jobs.
  • For further information on disclosing convictions prior to getting work see here.
  • It’s important to know what your legal obligations are if you receive a criminal record whilst you’re in work and what the consequences could be if your employer becomes aware of it.

Introduction

If you receive a conviction whilst you’re employed, it is important that you are clear as to whether this is something that you will need to disclose to your employer. This document offers a brief guide as to how receiving a criminal record may affect your employment.

This is for information only; if you have any doubts about whether you should raise an issue with your employers or start legal proceedings, we would recommend that you seek legal advice.

(Throughout this information, we use the general phrase “conviction”. This should be interpreted as meaning caution, or conviction. In the event that cautions and convictions are dealt with differently, we will highlight this).

Do you legally need to disclose a new conviction to your employer?

Whether you have to disclose a conviction obtained during employment is not always clear; a lot will depend on what your contract of employment states.

If your contract says that you have a duty to inform your employer of convictions received during your employment, then this is pretty clear cut and a failure to do so would be treated as a breach of your employment contract. If your employer were to discover your conviction, you may be dismissed if you had not informed them of it.

For employers who don’t make it clear whether you should disclose convictions received during employment, then there is no legal obligation on you to do so. If your conviction were to be discovered, then this, on its own, would not be a reason for your employers to dismiss you. However, some employers may feel justified in dismissing you on the basis that they can no longer trust you based on your keeping your conviction from them.

If you receive a disposal that becomes spent immediately (i.e. a caution), then you should be able to rely on the Rehabilitation of Offenders Act and not disclose (as long as the role/position isn’t exempt from the ROA).

Is there anything else you should consider about disclosing your criminal record?

There are some situations where you would have no choice but to disclose to an employer. For example, if your job involved driving, then the loss of your driving licence would mean that if you were to say nothing, you may have to continue driving and would therefore be committing an offence every time you got behind the wheel of the car.

If your conviction leads to restrictions being put on you, e.g. a harassment conviction could come with conditions attached regarding locations you cannot go and/or people you cannot have contact with. This could affect your ability to do your job, and make it impractical to carry out your duties without committing a further offence.

If there is any chance (either through gossip, publicity or being subject to regular formal criminal record checks) that you will get found out, then you will have to weigh up the chances of dismissal against the likelihood of the employer finding out by themselves and holding both that fact and the conviction against you.

What action can your employers take?

Where a criminal offence is committed (or even alleged) in relation to something that has occurred at work or in the course of your employment, then your employer would be entitled to treat this as a disciplinary matter, although they are not usually under any obligation to do so. If disciplinary action does happen, then your employer will need to follow their usual disciplinary procedures.

The situation is slightly more complicated where the allegation/conviction is related to an incident that took place away from the work place and is entirely unconnected to your employment. However, the result may be the same.

Where an employer becomes aware of a criminal conviction, you should not be surprised if they begin disciplinary proceedings. There is a good chance that, especially in cases of dishonesty, or where the conviction is directly relevant to your employment, that you will end up being dismissed. This would be the case whether the incident took place at work or not. It could have been committed in another country or in a situation wholly divorced from your employment; an employer is still entitled to use it as a reason to terminate your employment, either by treating it as misconduct (most likely if the incident took place at work), or as a dismissal for some other substantial reasons (SOSR).

There could also be a statutory reason for companies to dismiss you. For example, where a person loses their driving licence due to a conviction and driving is a critical part of their job.

What factors will your employers take into consideration?

If the conviction is for something you did outside work, employers should consider what impact it will have on your suitability to do your job and your relationship with your company, colleagues and customers. For example, it might be reasonable to dismiss you if you had been found guilty of fraud outside work if part of your job is operating a checkout till in a supermarket. However, if your offence is for driving, it may not be a problem if driving does not form part of your job. They should also take into account your previous work record. If it is unblemished then it may be easier to overlook a conviction which is not work related.

Other factors that an employer may take into consideration could include:

  • The image of the company (including the extent to which the issue is covered in the press, especially where it involves something serious, such as child sex offences)
  • The potential threat you pose to fellow employees or customers and clients of the company (especially relevant where you have been convicted of violent or sexual offences)
  • The likelihood that you will commit similar offences within your employment (especially where dishonesty is concerned)

What are the likely outcomes?

If you receive a custodial sentence then dismissal is likely to be the only option as you will no longer be capable of performing your contractual duties.

If your conviction leads to a non-custodial sentence, then the prospect of your retaining your employment may also appear unlikely, but it’s important to remember that you are still entitled to reasonable treatment from your employer. A criminal conviction should not automatically result in your losing your job and an employer should not immediately take this course of action. All employers have a legal duty to act responsibly, follow their own procedures and avoid a ‘kneejerk’ reaction.

Even when the staff handbook or company policy dictates that a particular act will justify dismissal, an employer must still carry out a proper investigation and decide whether, in the specific circumstances, they want to take a considered decision to dismiss.

What options are open to you?

If your employer were to consider taking some form of disciplinary action then you should avoid:

If you are given the opportunity, you will need to explain the circumstances to your employer. You should outline your value to the company, your good service (if you have it) and address any specific concerns they may have as best you can.

If convicted of a driving offence whilst employed as a driver, for example, this would be difficult, but you could at least put the thought in their minds that you could be transferred to another role. Similarly, if convicted of a dishonesty offence, you could propose that you be moved away from a cash-handling role. Such arguments carry little weight with some employers, but with others, they could prove effective, especially where you have a record of good service and the conviction was totally divorced from your employment. The important thing to remember is not to give in, but to defend yourself. Even if it seems hopeless, you may end up convincing your employer not to dismiss you.

Firstly, a refusal to co-operate will not help you as far as the internal disciplinary process goes, as there will be nobody to put your case to the employer and no opportunity for you to question the position that they take. In addition, an Employment Tribunal is unlikely to be impressed with your refusal, which would make it difficult for a reasonable employer to involve you in the proceedings and comply with the need to give you the opportunity to explain what has happened. Remember, most employers do not instigate disciplinary proceedings lightly and the best way to combat any assumption or evidence that they have (and to discover what it is) is to participate in the disciplinary process.


What can you do if you are dismissed?

The first thing would be to appeal the decision through your employer’s appeals process.

If this is unsuccessful, then you could consider taking your case to an Employment Tribunal. It is important to note that the law requires that an employee works for an employer for a minimum period before they can claim unfair dismissal. If your employment started before 6th April 2012 then this period is one year. If your employment started on or after this date, then you must complete two years of uninterrupted service before you can make a claim.

For further information regarding Employment Tribunals see here.

Personal experience

Our helpline was contacted by someone who had been suspended by his employer when they became aware of his conviction for harassment through reports in his local newspaper.

The offence didn’t take place within the work place, was not relevant to his job and had occurred during a period of mental illness which his employers were well aware of. His contract of employment did not make it clear whether there was any obligation on him to disclose his new conviction.

The reasons given by his employer for taking disciplinary action were that:-

  • He failed to disclose being charged with a criminal offence
  • The offence impacted upon his credibility to discharge the duties of his role
  • There was a loss of trust and confidence in the employment relationship due to the failure

This case demonstrates how despite there being no legal obligation to disclose, the fact that this gentleman’s conviction received some media interest means that this was possibly something he should have taken into account when deciding whether or not to disclose.

Did you get a conviction and keep your job? If so, let us know.

A recent Employment Appeal Tribunal (EAT) in Ireland highlighted the options open to an employer when an employee receives a criminal conviction for misconduct outside the work place.

The claimant was absent from work on long-term sick leave when he received a suspended sentence for the sale and supply of drugs. When his employer found out, he was dismissed for gross misconduct and breach of trust. The Employment Tribunal had to consider whether the dismissal could be justified given that the event took place away from the claimant’s place of work.

The EAT noted that there is considerable uncertainty as to whether an employee’s conviction for a crime committed outside the workplace entitles the employer to dismiss the employee. The argument usually relied upon by the employer is that the bond of trust has broken down.

The EAT held that a dismissal for misconduct outside  the work place can only be justified where there is sufficient connection between the crime committed and the employee’s work, in such a way that it would make the employee unsuitable or capable of damaging the employer’s reputation. The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to the business, employee relations or affects the reputation of the company.

Although this case was upheld and outside England & Wales, it demonstrates the general principle that still applies; if an employer is going to dismiss you for out of work misconduct, there must be a genuine connection between your offence and your employment. The connection must be such that it leads to a breach of trust and/or causes reputational and other damage to the company. If you have been dismissed whilst in employment and you believe you have the evidence to challenge the dismissal under the issues raised above, we would recommend that you seek legal advice.

More information

  1. For practical self-help information – More information can be found on convictions and employment law.
  2. To discuss this issue with others – Read and share your experiences on our online forum
  3. Questions – If you have any questions about this, you can contact our helpline.

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